Professional Negligence: When Practice Goes Wrong

Curtis E. Harris; Warren Richards; Jack E. Fincham

Disclosures

The Annals of Pharmacotherapy. 2006;40(7):1377-1382. 

In This Article

Negligence Defined

The case presented above is based, in part, on 2 actual cases and is, in part, fictionalized. It raises a number of important issues concerning negligence that require a more detailed discussion.

The definition of professional negligence most familiar to healthcare providers is the definition of ordinary negligence. As commonly phrased, ordinary negligence is the failure to exercise the degree of care that a careful or prudent practitioner would have exercised under like circumstances.[6] Such definitions involve the exposure of a patient to an unreasonable risk of harm, as judged by a jury (or judge) after expert testimony has been given to establish the ever-changing standard of care. Negligence can occur due to something we do or do not do if the act we fail to do was necessary to prevent an injury.

In the US, common law and statutory law form an interlocking and complementary set of rules and standards that define all of the forms of negligence, including professional negligence. Common law is case law or rules and standards determined by previous decisions in specific cases. Statutory law is law made by the legislature of any given state and is intended to codify or to make certain principles embodied in case law. Most statutory malpractice law merely reflects or enforces previous findings by judges and juries and does not create new liabilities for practitioners. However, statutes can also be a reaction to a finding by a court that is contrary to public policy, as defined by the legislature. In a sense, these laws are an attempt to "put to right" a finding by a court that the legislature considers outrageous. Some states have statutes that create safe havens for healthcare providers who follow certain protocols in the treatment of selected diseases, but these statutes have not been challenged in court and have had limited impact.

Negligence per se (statutory negligence) is behavior that "can be said without hesitation or doubt that no careful person would have committed." Some states have defined certain acts or omissions to be negligence as a matter of law (that is, per se).[6] Committing an act defined by such statutes effectively eliminates the plaintiff's need to prove negligence. Operating on the wrong part of the body or leaving surgical equipment inside the body are classical examples of negligence per se. However, a minority of states define violations of a statute to be evidence of negligence—not negligence itself. Such evidence is still left to the jury or the judge to weigh and to either accept or reject.

Ordinary negligence does not include reckless or intentional behavior. It also does not include the legal concept of a battery, which is defined as an unpermitted touching, with or without an injury.[7] Until the middle of the 20th century, many successful malpractice cases included some aspect of a charge of battery, especially cases raising what we now know as informed consent issues. A battery occurs only in the absence of any consent. Under current law, it is possible for a patient's consent to be so defective as to be nonexistent, but such a finding is very unusual.[8]

Healthcare professionals are frequently charged with reckless behavior in the initial complaint or summons in a case that actually involves only ordinary negligence. This is often done to allow the plaintiff's attorney to later argue that the facts support a charge of gross negligence.[9] Gross negligence is a matter of degree, defined as behavior that shows a "wanton or reckless indifference to the safety of others." For example, it is certainly gross negligence and reckless behavior for a pharmacist to fill a prescription or formulate a medication while intoxicated, but it is not necessarily negligent or reckless to perform the same practices while sleep-deprived. If carelessness of an extreme degree can be shown, punitive damages can be sought. Punitive damages are difficult to obtain, because they are both defined (and limited) by statutory law and are given for a type of behavior that is unusual among competent providers. Because the purpose of punitive damages is to teach the responsible party a lesson they and others will not easily forget, the court reserves such damages for the most culpable individuals.

There is no clear or bright line between ordinary negligence and gross negligence. It is usually possible to characterize a sloppy practice as either ordinary or gross negligence. However, reckless or wanton behavior (essential to a finding of gross negligence) has important characteristics. It is behavior that involves a known or obvious risk of harm. It is done with a conscious indifference to the welfare of another such that it is the close equivalent of a willingness that the harm will occur. Such behavior does not require the proof of an actual motivation, but if a secondary motive (eg, profit or personal fame) can be shown, recklessness is far easier to prove. Any motive other than the general welfare of the patient can be enough to turn an inattentive error into a charge of recklessness. Finally, and possibly most important, negligence that is both offensive and of a type that a nonprofessional juror would consider reckless, without the help of expert testimony to establish that it is reckless, will often be found to be gross negligence.

Criminal negligence by a healthcare provider is defined as a reckless act with battery (unpermitted touching).[6] In the circumstance of gross negligence, as opposed to criminal negligence, a patient has consented to treatment after being properly informed of the risks and benefits of a therapy, that is, after informed consent has been obtained. However, informed consent is not a permission slip to behave irresponsibly. No person can legally permit another to intentionally cause them harm. If an injury is the certain or foreseeable outcome of a behavior and the harm far outweighs any other intended benefit, no amount of informed consent can legally permit the act. Simply put, one cannot avoid criminal or civil liability for a person's death by obtaining that person's consent to kill them, even if that person believes that their death has some benefit to them. In the same sense, even though death is a possible unintended outcome of an act, no one consents to actually die when death is made probable by recklessness. Reckless or indifferent behavior can completely destroy the protection against criminal negligence afforded most healthcare providers by informed consent creating instead a battery. Because a battery that causes harm is a criminal act (felony or misdemeanor), it is a short step from gross negligence to an act that is prosecuted under the criminal law. Prosecution for criminal negligence associated with health care is at the discretion of the public prosecutor who often looks for (1) patterns of behavior or a single behavior that (2) offends all public decency and is an (3) offense described by the criminal statutes of the state.

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